In Praise of the Gitmo Bar

A number of prominent conservative lawyers have now come to the defense of the Department of Justice attorneys who previously represented detainees or advocated for detainee rights. While their eloquent defense of "[t]he American tradition of zealous representation of unpopular clients" is appreciated, their letter overlooked one of the basic fallacies of the original and continuing attacks on these lawyers. Aside from the obvious point that lawyers who advocate on behalf of persons with odious viewpoints do not necessarily share the views of the clients they represent (think about the ACLU fighting for the right of Nazis to march in Skokie, Illinois), it must also be emphasized that to represent a detainee is not necessarily to represent "a terrorist" at all, much less "al-Qaeda."

As an important study by Mark Denbeaux at Seton Hall has shown, according to the evidence relied upon by the US as a basis for detention, most detainees at Guantanamo had little or no connection with al-Qaeda. Only a small fraction of the detainees have even been alleged, much less proven, to bear any responsibility for any acts of terrorism. Recently, after an exhaustive year-long review, the Obama administration determined that there was sufficient evidence to charge only 35 detainees with any crimes - less than 5 percent of the total of 774 detainees who have been held at Guantanamo. Before President Obama took office, the Bush administration voluntarily released two-thirds of the Guantanamo detainees after determining there was simply no legal basis to continue to hold them; dozens more had been cleared for release and were awaiting a country to take them in. Of the approximately 240 detainees remaining when President Obama assumed office, allegedly "the worst of the worst," two-thirds of them have now been released or cleared for release.

Of course, a small fraction of detainees at Guantanamo actually are al-Qaeda. But most of the truly committed al-Qaeda detainees, like my former client, Ali Hamza al Bahlul, refused to be represented by an American lawyer, either military or civilian. (Mr. al Bahlul repeatedly attempted to fire me, and I was present when Mr. al Bahlul ordered his habeas attorney, authorized by Mr. al Bahlul's family to file the petition, to drop the case.) Even accepting that there may be a few actual al-Qaeda terrorists represented by American lawyers, if one were to review the hundreds of thousands of pages of legal documents filed on behalf of all the Guantanamo detainees by American lawyers over the last eight plus years, one would be hard pressed to find a single sentence that could be construed as pro al-Qaeda or pro-terrorism, in the sense of endorsing the al-Qaeda ideology or endorsing terrorist methods.

So, what exactly have the "pro-terrorist," "pro al-Qaeda" lawyers been fighting for?

In essence, the Gitmo Bar, as we detainee lawyers proudly refer to ourselves, fought for the restoration of the rule of law in the treatment of detainees in the "war on terror." The Bush administration's staunchly held position was that Guantanamo was a legal black hole where a detainee could be held indefinitely, without charge, without being informed of the basis for their detention and without any ability to challenge the basis for detention. Detainees had no right to consult counsel and no right of access to any court, anywhere, ever. Indeed, they were not protected by any law at all. The Gitmo Bar fought back against these positions which were inconsistent with international law, the US Constitution and cherished American values. The bulk of the litigation on behalf of detainees has focused on three core principles:

First, the Gitmo Bar fought for humane treatment for all detainees and against torture, cruelty and abuse. Humane treatment is the baseline guaranteed by Common Article 3 of the Geneva Conventions for all persons detained in war, and is a basic human right. The Bush administration said Common Article 3 didn't apply. The Supreme Court said otherwise.

Second, the Gitmo Bar fought for the right of detainees to be informed of the basis for their detention and to have an opportunity to prove their innocence in a court of law. The Supreme Court has repeatedly affirmed that detainees had this right.

Third, the Gitmo Bar fought for the right of the few detainees facing criminal charges to be tried "by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples" as guaranteed by the Geneva Conventions. The Supreme Court agreed that detainees are entitled to nothing less, invalidating the original kangaroo court, military commissions devised by the Bush administration.

After nearly seven years of fighting for the restoration of these basic rights to detainees, a few lucky members of the Gitmo Bar have now had the opportunity to prove their client's factual innocence. In 33 of 44 cases to get to a habeas corpus hearing on the merits in federal court, the detainees have won (my client, Mohammed Jawad, was one of the winners.) That's right; in 75 percent of cases a federal judge determined that the government had failed to prove by a preponderance of the evidence (more likely than not) that there was a lawful basis for detention. Had the Gitmo Bar not fought for the restoration of the rule of law, who knows how much longer long these 33 innocent men would have been locked up?

The legal fight over the rights of detainees has been the defining human rights battle of our generation. The hundreds of dedicated members of the Gitmo Bar, for no pay, and at great personal sacrifice, have fought this battle and won. Their victories are not victories for the terrorists; their victories are victories for us all.

Professor David Frakt is director of the Criminal Law Practice Center at Western State University College of Law, a lieutenant colonel in the US Air Force Reserve JAG Corps and a former lead defense counsel with the Office of Military Commissions. He also served as habeas counsel for a Guantanamo detainee, Mohammed Jawad, who was released in August 2009.